Preview of Jack Goldsmith's Book on Bush and DOJ
Check out next Sunday's New York Times' magazine article by Jeffrey Rosen on Jack Goldsmith's book that discusses, among other things, what went on behind the scenes with Ashcroft, Gonzales and the NSA wiretapping program. Goldmsith is the former head of the DOJ's Office of Legal Counsel
The article contains a number of new disclosures. But first, some background. Goldsmith is a conservative. He supports the war on terror. Here's where he's coming from:
Goldsmith notes, everywhere the president looks, critics — as well as his own lawyers — are telling him that pre-emptive actions may violate international law as well as U.S. criminal law. What, exactly, are the legal limits of executive power in the post-9/11 world? How should administration lawyers negotiate the conflict between the fear of attacks and the fear of lawsuits?
In Goldsmith’s view, the Bush administration went about answering these questions in the wrong way. Instead of reaching out to Congress and the courts for support, which would have strengthened its legal hand, the administration asserted what Goldsmith considers an unnecessarily broad, “go-it-alone” view of executive power. As Goldsmith sees it, this strategy has backfired. “They embraced this vision,” he says, “because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it.”
On the role of the Office of Legal Counsel:
[T]he office has two important powers: the power to put a brake on aggressive presidential action by saying no and, conversely, the power to dispense what Goldsmith calls “free get-out-of jail cards” by saying yes. Its opinions, he writes in his book, are the equivalent of “an advance pardon” for actions taken at the fuzzy edges of criminal laws.
Now, some of the more interesting disclosures:
Who was running the show?
In the Bush administration, however, the most important legal-policy decisions in the war on terror before Goldsmith’s arrival were made not by the Office of Legal Counsel but by a self-styled “war council.” This group met periodically in Gonzales’s office at the White House or Haynes’s office at the Pentagon. The members included Gonzales, Addington, Haynes and Yoo.
The "largest presence in the room" was usually Cheney's guy, Dick Addington.
Goldsmith puts the bulk of the responsibility for the excesses of the Office of Legal Counsel on the White House. “I probably had a hundred meetings with Gonzales, and there was only one time I was talking about a national-security issue when Addington wasn’t there,” Goldsmith told me. “My conflicts were all with Addington, who was a proxy for the vice president. They were very, very stressful.”
There's a lot of detail on Goldsmith's withdrawal of John Yoo's torture memorandum and disagreement over treatment of detainees.
Then, Rosen moves on to the warrantless NSA program.
In Goldsmith’s estimation, the unnecessary unilateralism of the Bush administration reached its apex in the controversy over wiretapping and secret surveillance.
....In his book, Goldsmith claims that Addington and other top officials treated the Foreign Intelligence Surveillance Act the same way they handled other laws they objected to: “They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations,” he writes.
Finally, onto the infamous Ashcroft hospital visit. Goldsmith was a witness to it.
As he recalled it to me, Goldsmith received a call in the evening from his deputy, Philbin, telling him to go to the George Washington University Hospital immediately, since Gonzales and Card were on the way there. Goldsmith raced to the hospital, double-parked outside and walked into a dark room. Ashcroft lay with a bright light shining on him and tubes and wires coming out of his body.
Suddenly, Gonzales and Card came in the room and announced that they were there in connection with the classified program. “Ashcroft, who looked like he was near death, sort of puffed up his chest,” Goldsmith recalls. “All of a sudden, energy and color came into his face, and he said that he didn’t appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn’t the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I’ve ever witnessed.”
The money quote: Mrs. Ashcroft stuck her tongue out at Gonzales and Card when they left:
After a bit of silence, Goldsmith told me, Gonzales thanked Ashcroft, and he and Card walked out of the room. “At that moment,” Goldsmith recalled, “Mrs. Ashcroft, who obviously couldn’t believe what she saw happening to her sick husband, looked at Gonzales and Card as they walked out of the room and stuck her tongue out at them. She had no idea what we were discussing, but this sweet-looking woman sticking out her tongue was the ultimate expression of disapproval. It captured the feeling in the room perfectly.”
Goldsmith also has some criticism of President Bush. He doesn't think he understood what was going on.
In Goldsmith’s view, an indifference to the political process has ultimately made Bush a less effective wartime leader than his greatest predecessors. Surprisingly, Bush, who is not a lawyer, allowed far more legalistic positions in the war on terror to be adopted in his name, without bothering to try to persuade Congress and the public that his positions were correct. “I don’t know if President Bush understood how extreme some of the arguments were about executive power that some people in his administration were making,” Goldsmith told me. “It’s hard to know how he would know.”
Bush, Goldsmith says, overplayed his hand:
In retrospect, Goldsmith told me, Bush “could have achieved all that he wanted to achieve, and put it on a firmer foundation, if he had been willing to reach out to other institutions of government.” Instead, Goldsmith said, he weakened the presidency he was so determined to strengthen. “I don’t think any president in the near future can have the same attitude toward executive power, because the other institutions of government won’t allow it,” he said softly. “The Bush administration has borrowed its power against future presidents.”
Bush may not have known better, but Addington certainly did. While there's plenty of blame to go around, I put Cheney and Addington at the center of it. See Glenn Greenwald today for more on Addington in the context of Rosen's article.
The book sounds like it's well worth reading. It will be out later this month. You can order it here.
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